Supreme Court Update for Banking and Financial Services Professionals

Not one aspect of public life has gone unaffected by the current COVID-19 crisis — not even the Supreme Court’s building operations or oral argument schedule. The Court has postponed the next batch of oral arguments scheduled for March 23-25 and March 30-April 1. The Court added that its “postponement of argument sessions in light of public health concerns is not unprecedented,” citing its actions in “October 1918 in response to the Spanish flu epidemic” and “in August 1793 and August 1798 in response to yellow fever outbreaks.” Besides the public health concerns are the concerns for the justices themselves, given the virus’s disproportionate impact on older persons and persons with chronic health conditions. Six of the nine justices are 65 years old or older. Justice Ruth Bader Ginsburg, the elder statesperson on the Court, turned 87 on Sunday and has fought different forms of cancer over several decades.

Among other important cases caught up in the delay are the three big ones about President Donald Trump’s tax returns, which were to be argued on March 31. This trio includes Trump v. Vance, No. 19-635, which presents the question whether the Manhattan District Attorney’s Office may obtain the President’s tax returns via a New York state grand-jury subpoena; Trump v. Mazars USA, LLP, No. 19-715, which concerns whether the Committee on Oversight and Reform of the U.S. House of Representatives has the constitutional and statutory authority to issue a subpoena to the President’s accountant demanding the President’s private financial records; and Trump v. Deutsche Bank AG, No. 19-760, which likewise concerns whether the Committee on Financial Services and the Intelligence Committee of the U.S. House of Representatives have the constitutional and statutory authority to issue a similar subpoena to the President’s creditors. The key issue in these cases, following other Supreme Court cases involving President Richard Nixon and President Bill Clinton, is whether these subpoenas improperly interfere with the President’s authority granted by Article II of the Constitution. In other words, while generally subpoenas for financial records are enforceable in the ordinary course, are they enforceable when the target is the President? The answer could be the biggest thing to come out of the Court this Term.

Those cases were set to be argued March 31. It is unknown when they will be rescheduled. The Court said that it “will examine the options for rescheduling those cases in due course in light of the developing circumstances.” Because the circumstances are developing quickly and constantly, I would not expect an announcement for a while.

Charles W. Prueter is an appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at charles.prueter@wallerlaw.com.